As litigators, we often commence claims on behalf of our clients by way of action (i.e. a statement of claim, notice of action, counter-claim or cross-claim is issued by the court and served on the named defendants).
In an action, evidence is entered at trial through a witness. The witness, who may be a party or a non-party, is asked questions and subject to hearsay rules, evidence, including documentation, may be admitted for consideration by the judge who will be making the final determination of the matter.
If you are litigating a claim by way of application rather than action, the court is provided with a written record to consider (and unlike at trial, witnesses are not typically examined under oath in the presence of a judge at the final hearing).
The typical way of entering evidence in an application is through a sworn affidavit. The opposing party will then have the opportunity to cross-examine parties and non-party witnesses who have sworn affidavits.
But what happens if you have a non-party witness with pertinent evidence who is unwilling to (or perhaps cannot due to their own internal professional policies) swear an affidavit?
Rule 39.03(1) of the Rules of Civil Procedure sets out that a person may be examined as a witness before the hearing of a pending motion or application for the purpose of having a transcript of their evidence available for use at the hearing. This gets around the limitation of the person’s unwillingness/inability to swear an affidavit, while still providing the court with a record of their evidence at the hearing. Similar to an examination conducted on an affidavit, the Rules require that the right to examine a third party, though broad, must be done promptly and in an organized fashion so as not to delay the hearing of the motion or application (this is referred to as the reasonable or due diligence qualifier).
Rule 39.03(1) is also subject to rule 39.02(2) which states that a party who has cross-examined on an affidavit delivered by an adverse party shall not deliver an affidavit for use at a hearing, or conduct an examination under rule 39.03, without leave of the court or consent of the parties. To learn more about the availability of cross-examinations on affidavits in an application see here and here.
In addition to an out of court examination as provided for under Rule 39.03(1), it may be possible to obtain leave of the judge hearing the final adjudication of the motion or application, to examine a person at the hearing in the same manner as you would at trial, under Rule 39.03(4). However, it does not appear that this rule is frequently used (there is little judicial consideration of the rule). It appears that an examination under Rule 39.03(4) may only be necessary if the credibility of the witness is in issue, and the court has cautioned that any party requesting leave under Rule 39.03(4) notify the opposing party of this intent in a timely fashion (see Oberlander v Canada (Attorney General), 2004, CanLII 15504 (ONSC)).
However, depending on the circumstances of the application, a court may itself order certain witnesses to provide their evidence viva voce (i.e. orally) prior to or at the final hearing. A recent example of this in the context of a will challenge commenced by way of application is Reville v Weeks, 2024 ONSC 656. In Reville, given the relatively modest value of the Estate, the parties agreed to proceed on the basis of a paper record. The court determined that it was important to hear the evidence of the two individuals who witnessed the signing of the purported Last Will, neither of whom had previously been cross-examined. The court found that it was appropriate, and in the interests of justice to hear the evidence of these two witnesses, and then to resolve the balance of the proceedings in a summary fashion.
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